Tuesday, 21 December 2010

Government's answer to my lawsuit: Deny everything, and claim that nobody has any rights

Where has your PNR data gone? (click image for larger version or here for details)

The U.S. government has filed its initial answer to my lawsuit against U.S. Customs and Border Protection (CBP) for illegally withholding records of its travel surveillance system, and an initial procedural hearing in the case has been scheduled for Thursday, January 6, 2011, at 10 a.m. in San Francisco.

The answer filed by the U.S. Attorney's Office in San Francisco (although presumably drafted or directed from Washington) on behalf of CBP (as a division of the Department of Homeland Security) is mostly a boilerplate recitation of denials of even the most obvious facts, and the knee-jerk invocation of every possible defense, no matter how unlikely it is to actually be applicable.

But if the government's claims are true, the implications of some of them are shocking. In particular, they claim that, "Plaintiff was provided all documents that he is entitled to by law," even though -- like everyone else who has requested their records from the "Automated Targeting System" (ATS) -- I have never received anything that was even claimed to be in response to my request for the "accounting of disclosures" required by the Privacy Act. Nor did I receive anything which was even claimed to be the "risk assessments" made of me, or the rules for determining those risk assessments, both of which were mentioned in CBP's years-belated official notice of the contents of the ATS.

In other words, the government is claiming in answer to my lawsuit that nobody -- not even U.S. citizens -- has any legal entitlement to know what other government agencies or third parties have received their travel records including PNR's from CBP, what "risk" scores (used to decide whether to allow us to fly, or how to treat us) have been assigned to us, or how those scores have been generated.

So much for any pretense of transparency, accountability, or access rights. Nobody has any right to know who has gotten our PNR's, or how they are being used against us.

The initial "case management conference" will be my first chance to meet the government's lawyers and the judge to which the case has been assigned, Judge Richard Seeborg of the U.S. District Court for the Northern District of California. I expect it to be brief, and to be solely concerned with setting a schedule for filing of preliminary motions. But it will be open to the press and the public, and you are welcome to attend. If you do, please say hello!

UN & Inter-American Commission on Human Rights: "The right to access information held by public authorities is a fundamental human right subject to a strict regime of exceptions. The right to access to information protects the right of every person to access public information and to know what governments are doing on their behalf." http://www.cidh.oas.org/relatoria/showarticle.asp?artID=829&lID=1

"Congress shall make no law ... abridging ... the right of the people peaceably to assemble." (U.S. Constitution)

"Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country." (Universal Declaration of Human Rights)

"Liberty of movement is an indispensable condition for the free development of a person." (United Nations Human Rights Committee)